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The category of domestic violence covers a vast array of conduct involving violence or threat of violence involving two people that have one of the following relationships: married or domestic partners, dating or used to date, live or lived together, or have a child together.
Law enforcement and the district attorney’s office take any domestic violence allegation very seriously. The truth is, domestic violence may lead to murder in some cases.
Because of this statistical probability, the domestic violence criminal process is different than other criminal cases and as such, you will need an attorney that knows how to navigate it.
When law enforcement is called out to a domestic violence incident they are on high alert. Once they interview both parties involved they determine who was the aggressor and who was the victim. If there are visible injuries or a party admits to inflicting violence, the officers will usually arrest the aggressor. The officers will ask the victim if they want an Emergency Protective Order requiring the aggressor to stay away from the victim and not to have contact with him/her at all whatsoever.
Here is a link to an Emergency Protective Order:
http://www.courts.ca.gov/documents/epo001.pdf
If you find yourself as the “aggressor” you will likely be arrested and booked into jail. If you are in custody, the district attorney’s office will have to file your case within 48 hours (excluding weekends and holidays) or you will be released. If your case is not filed within 48 hours, this does not mean that it will not be filed altogether. The district attorney’s office has up to three years to file a domestic violence case because it is a wobbler. (see What You Need to Know About Wobblers)
For the most part, even minimal conduct that involves force and aggression will be filed by the district attorney’s office, simply because it is safer to ere on the side of caution in these matters.
Anyone accused of domestic violence must be present at the first hearing because the court will consider issuing a Criminal Protective Order (“CPO”), this is because Emergency Protective Orders are short term. The CPO may stay in place for the duration of your case. There are ways to terminate the CPO and make it less restrictive, permitting peaceful contact.
If a protective order is issued, you will lose your right to possess a firearm and you will have to relinquish your firearms to the authorities within 24 hours of the court order.
If you enter a plea to domestic violence or are found guilty after a trial, you will lose your gun rights in California and federally for your lifetime, making it essentially a lifetime ban (even for a misdemeanor conviction). However, there are ways to structure pleas to avoid a “conviction” for purposes of losing your gun rights.
In addition to criminal charges, the accused may find him/herself fighting against a Restraining Order in family court. If you find yourself in this situation it is important to hire an attorney that handles domestic violence cases. When you have two separate cases related to the same conduct, you need an attorney to protect your interests. If you speak in the family court, your words may be used against you in the criminal court. Once a Restraining Order is granted in family court, it generally stays in place for three years with the consequence of removing your gun rights for that period of time.
Domestic violence cases are emotionally charged. Often times the victim recants his/her story and wants to reconcile with the aggressor. However, the DA/prosecutor wants to protect the victim from future injury or even death.
Unfortunately, there are often false claims of domestic violence, strategically brought up in a divorce or child custody situation. The hardest thing about domestic violence is that the alleged conduct usually involves two people in a room alone, with no witnesses. The only evidence in the case consists of the conflicting statements of the two parties and the marks or bruises left on the victim. Bruises do not tell the whole story.
If you find yourself accused of domestic violence, hire an experienced attorney that handles domestic violence cases. At Proper Defense we offer package representation, including the criminal law and family court Restraining Order representation. You can feel confident that you are protected and that the family court Restraining Order case will not compromise your criminal case. Call Proper Defense today to schedule a consultation at 559-825-3800.
